Battle of Stupid White Men Books

By DAVID CARR

Published: March 15, 2004

Next week, a tiny Brooklyn-based publisher will bring out "How to Get Stupid White Men Out of Office." The book, a low-budget paperback written by a group of political activists, is not to be confused with "Stupid White Men," a HarperCollins best seller by the filmmaker and author Michael Moore, which remains in hardcover.

But HarperCollins has been concerned about just that sort of confusion. In November, HarperCollins wrote to the Brooklyn publisher, Soft Skull Press, demanding that the title be changed and stating that the similarities would cause "irreparable damage" to Mr. Moore and his book.

The ironies compound rather quickly at this point, even ignoring that a company built on free and unfettered expression appears to be, by implication, objecting when someone else engages in that. In sending the letter, HarperCollins was protecting a book it refused to publish for a time, defending an author it fought bitterly with, and, according to Mr. Moore, doing so without his knowledge.

When called about the letter and the implied legal threat, a spokeswoman said that the publisher planned no further action against Soft Skull Press over "How to Get Stupid White Men Out of Office,'' which was written and edited by William Upski Wimsatt, among many others.

HarperCollins has always had a hard time making up its mind about "Stupid White Men," a jeremiad against the Bush administration that was originally scheduled to be released on Sept. 11, 2001. HarperCollins delayed the release because of the sensitivities created by the terrorist attacks, and, according to Mr. Moore, asked for significant changes in tone and content.

The book was finally released in 2002 after a group of librarians organized a protest and threatened to boycott the publisher, according to Mr. Moore. The book became a big nonfiction success, selling more than a million copies, but Mr. Moore said he was embittered by the experience and moved to Warner Books. Mr. Moore says he has not spoken to anyone at HarperCollins for two years.

"It is kind of strange that a publisher that first tried to squash my book is now trying to defend their economic interest now that it is a best seller," he said. "And they are apparently doing it by trying to squash another book."

A spokeswoman for HarperCollins, which is owned by the News Corporation , said no squashing was in the offing.

"We were concerned that there would be confusion, and we brought that to the attention of the publisher and that was the end of it," the spokeswoman, Lisa Herling, said.

In the HarperCollins' letter to Soft Skull Press, the publisher said, "Michael Moore has become closely identified with the phrase 'Stupid White Men' in the minds of the general public."

"Accordingly, we demand that you eliminate the phrase 'Stupid White Men' from the title of Mr. Wimsatt's book prior to its publication," said the letter, from Beth Neelman Silfin, vice president and associate general counsel of HarperCollins. "Please confirm to me, in writing that you will take this important and necessary step to avoid confusion between the two books."

Richard E. Nash, the publisher of Soft Skull Press, said he thought the letter was hilariously menacing.

"The reason that I have neither ceased nor desisted is that they have no case," Mr. Nash said. "Besides, I have strong opinions about the current trends in copyright and trademark laws. There is a huge land grab going on by big corporations."

Robert D. Lystad, of the Baker & Hostetler law firm in Washington, said that he had not seen a land grab but had noticed a trend toward a more spirited defense of intellectual property.

"Publishers, like other business, are aggressively pursuing protection for any aspect of their products that they believe imparts value," he said, adding, "catchy titles impart value."

In his written response to HarperCollins, Mr. Nash pointed to a case brought last summer by the Fox News Channel, another division of News Corporation. Fox News had sought an injunction against the comedian Al Franken over the title of his book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right," arguing that his use of the term "fair and balanced" would lead to consumer confusion. But Judge Denny Chin of the United States District Court for the Southern District of New York said someone would have to be "completely dense" not to get the joke implied by the cover.

Mr. Franken said that the two issues were not precisely the same.

"The Fox case was wholly without merit," he said. "This one seems a little tougher because I was doing a book that was commenting on Fox. It was satire. This book sounds sort of similar to Michael Moore's."

Few would mistake "How to Get Stupid White Men Out of Office" for a potential best seller. With a dozen authors and editors on the cover and a relentless focus on nuts-and-bolts electoral tactics and case studies, it is far from a breezy bit of Bush-bashing.

"I think that this is one of those big, dumb, paranoid intellectual property gambits," Mr. Nash said. "They send out these big cease-and-desist letters to anything that moves."

In this case, the prospects for a legal remedy might be slim.

"The fact that Mr. Moore and his publishers have been lucky enough to coin a phrase doesn't mean they get a monopoly over its use," said Kevin W. Goering, a media and publishing lawyer at Coudert Brothers, a Manhattan law firm. "Any legal action would be very speculative at best." Mr. Goering added that book titles are not generally subject to copyright laws.

Mr. Moore - whose current best seller, "Dude, Where's My Country?" does some borrowing of its own from the movie "Dude, Where's My Car,'' - says he does not object to the latest iteration of "Stupid White Men," as long as there is no confusion about who wrote it.

"I bumped into somebody that was working on the project a few months ago and said it is important that the public not think that it was a book by me," he said. "But I am flattered that somebody would take something that I did and use it to create change."